The Franchise, a Civil Right

Free elections are one of the fundamental principles of any parliamentary democracy. The constitution of the Federal Republic of Germany, the Basic Law, thus stipulates in its Article 20, Paragraph (2):

“All public authority emanates from the people. It shall be exercised by the people through elections and referendums and by specific legislative, executive and judicial bodies.”

These principles are irrevocable (Article 79, Paragraph (3)).

According to Article 28, Paragraph (1), second sentence, the people must also be represented by an elected body in the Länder (states), counties and municipalities.

In the Federal Republic of Germany, the basic requirements of a democratic electoral system are determined by the constitution. Proceeding from the equal civil rights and duties of all Germans as expressed in Article 33, Paragraph (1), the Basic Law sees the franchise as a fundamental political right which is closely related to other civil rights. In this connection, the most relevant civil or fundamental rights are the right to form associations (parties) and to belong to such, freedom of speech and information, and the right of assembly.

With regard to the elections for the German Bundestag (Federal Parliament), the Basic Law contains only a few, though fundamental, principles. The choice of the electoral system and the actual procedure are regulated not by the constitution but by an ordinary law, the Federal Electoral Law.

Article 38 of the Basic Law. which is the basis of the Federal Electoral Law, reads as follows :

“(1) The Members the German Bundestag shall be elected in general, direct, free, equal and secret elections They shall be representatives of the whole people ; they shall not be bound by any instructions, only by their conscience.(2) Anybody who has attained the age of 18 is entitled to vote ; anyone of majority age is eligible for election.

(3) Details shall be the subject of a federal law.”

This means that every German citizen, irrespective of religion, race, education, sex, wealth or the amount of tax paid, has the right to participate in elections for the Bundestag, which according to Article 39, Paragraph (1), first sentence of the Basic Law is elected for a four-year term. Thus in the Federal Republic of Germany there is no class system of voting.

No one is obliged to vote. Those who do must be able to vote for the candidate or party list of their choice without any coercion or pressure. The elections are direct, there is no involvement of delegates or electoral colleges. Voting must be conducted in secret. This freedom and secrecy of elections is protected by the law and any violation is subject to prosecution. Each person has the same number of votes as everyone else and all votes carry the same weight – that, too, is constitutionally guaranteed. Article 28, Paragraph (1), second sentence, of the Basic Law contains corresponding guarantees with regard to elections in the Länder, counties and municipalities.

The “active franchise” (the right to vote) and the “passive franchise” (the right to stand for election) is enjoyed by all Germans and applies to all parliamentary bodies in the Federal Republic of Germany : at federal level (German Bundestag), at Land (federal state) level (the Landtag, which in Berlin is known as the “Abgeordnetenhaus” or Chamber of Deputies, in Bremen and Hamburg as the “Bürgerschaft”), and at local level (county and town councils).

The Electoral System

A Combination of First-Past-the-Post and Proportional Representation

In the Federal Electoral Law of 7 May 1956 the legislator opted for elections on the basis of proportional representation linked to the personal election of candidates, also called “personalised proportional representation”, in other words a mixed system. Thus, in 1994

– half of the members will be elected to the German Bundestag by direct vote in 328 constituencies (i.e., on a first-past-the-post basis),

– the remaining 328 will be elected to the German Bundestag via the lists of candidates put up by the parties in the Länder (proportional representation).

Under this system, each eligible person has two separate votes that can be cast independently of each other. One, the first vote, is cast for one of the candidates in his constituency, the other, the second vote, for one of the party lists in the federal state concerned. It is possible to vote for different parties.

In the constituencies, the candidate who polls most first votes is the winner.

The second vote is given for one of the lists put up by the parties in each of Germany’s 16 federal states. The sequence of the candidates on the lists is fixed by the parties themselves beforehand and cannot be changed by the voter.

The Federal Electoral Committee establishes the number of seats each party is to receive on the basis of the second votes, which are therefore decisive for the election result.

Seat distribution is based on the method developed by a German mathematician (Niemeyer). It ensures that the distribution of seats corresponds exactly to the proportional distribution of votes.

The seats are distributed among the parties in proportion to the total number of second votes polled by them in the whole area (upper distribution). Only those parties that have polled at least five per cent of the second votes in the entire country or who have won at least three constituency seats on the basis of first votes can be considered. The purpose of this safety clause is to exclude splinter parties, thus ensuring that parliament can function properly and providing a basis for stable government.

Since the elections for the Bundestag in 1957, the qualifying parties have been the Christian Democratic Union of Germany (CDU), the Social Democratic Party of Germany (SPD), the Christian Social Union (CSU), which puts up candidates in Bavaria only, and the Free Democratic Party (F.D.P.).

According to the Niemeyer method, the total number of seats is multiplied by the number of second votes obtained by each party individually and the product divided by the sum total of second votes obtained by all the parties that have polled at least five per cent of the votes. First, each party receives one seat for each whole number resulting from this calculation. The remaining seats are allocated in the descending sequence of decimal fractions (see diagram).

A second calculation is made, again according to the Niemeyer method, to determine the total number of seats for each party at federal level to be distributed among their Land lists (lower distribution). Any seats which a party has already won directly in the constituencies are deducted from the number of seats for its Land lists. The remaining seats are filled by the candidates on the Land list in the order determined before the election. It is possible for a party to have what are known as “overhang” seats when it wins more seats in the constituencies on the first vote than it is entitled to according to the result of the secondvote calculation.

How seats are distributed according to the Niemeyer method

The following example is based on a fictitious Land with 31 seats in the Federal Parliament where a total of 36,900 votes have been cast.

Votes cast

multiplied with total no. of seats

divided by total number of votes cast

equals no. of seats (in decimal fraction)

each party obtains one seat for each full number

remaining seats (3) distributed by remaing decimal fractions

total number of seats

Party A

18,900

* 31

: 36,900

= 15.878

15

1

16

Party B

12,900

* 31

: 36,900

= 10.837

10

1

11

Party C

1,900

* 31

: 36,900

= 1.596

1

0

1

Party D

3,200

* 31

: 36,900

= 2.688

2

1

3

Total

36,900

* 31

: 36,900

31.000

28

3

36

On average, each constituency has 222,000 German residents. The Federal Electoral Law prescribes that an average population in a constituency may not be more than 33 1/3 per cent more or less than this average figure. This is the absolute limit for population discrepancies. If the divergence is greater, the constituency boundaries have to be altered. This has often been the case.

The Franchise and Eligibility for Election

All Germans are entitled to vote in elections for the German Bundestag who are at least 18 years old on election day, have lived in the electoral area for at least three months, and have not been disqualified by judicial decision. Following an amendment of the Federal Electoral Law in 1985, the franchise has been extended to German nationals living abroad. Germans residing in a member state of the Council of Europe are now entitled to vote in elections held in the Federal Republic of Germany irrespective of how long they have been living abroad. Germans who live in other countries may vote during the first ten years from the time they leave the Federal Republic, provided they resided continuously in the federal territory, for at least three months prior to leaving the country.

Eligible to stand for parliament are all persons who have been German citizens for at least one year, are at least 18 years old and have not been disqualified on the basis of special statutory provisions.

The minimum age for parliamentary candidates has been reduced several times since 1949. Up to the 1969 federal election anyone aged 25 or over was eligible but by the time of the 1972 election the age had been lowered to 21. Since the 1976 election the minimum age has been 18 in accordance with a law passed on 31 July 1974 on the basis of Article 38, Paragraph (2) of the Basic Law.

Nominations, Election, Preparations

Candidates may be nominated by political parties and persons entitled to vote. Persons who are not members of a party may only stand for election in a constituency, in other words they cannot submit Land lists. Only parties have this right. In practice only the parties nominate candidates in federal and state elections. “Non-party” constituency nominations must have the support of at least 200 persons entitled to vote in the constituency concerned who must sign the nomination. This also applies to parties not represented in parliament. In submitting Land lists, these parties must also submit signatures from a maximum of 2000 persons entitled to vote in that federal state. Party constituency and list candidates are chosen by secret ballot by the members or delegates elected by them.

Only persons on the register maintained by the local authority or having a polling card may vote. A postal ballot is possible.

The date of the election for the Bundestag is fixed by the Federal President. It must be a Sunday or public holiday. Article 39, Paragraph (1), third sentence, of the Basic Law prescribes that the new election must be held at the earliest 45, at the latest 47, months after the beginning of the legislative term, that is, after the first meeting of parliament, and Paragraph (2) of Article 39 stipulates that the Bundestag must assemble at the latest on the 30th day after the election. The four-year legislative term ends when the new parliament convenes for its constituent session.

Nobody may be prevented from assuming and exercising the office of Member of the Bundestag. Nobody may be given notice or dismissed from their employment on this ground. (Article 48, Paragraph (2) of the Basic Law). And Paragraph (1) of that Article states that all candidates for election to the Bundestag are entitled to the leave necessary for their election campaign. This provision ensures that all candidates have equal opportunities.

Public Polling, Secret Ballot

The actual polling is organized by the local authorities and independent electoral bodies. The members of such bodies are pledged to officiate impartially and to observe secrecy.

In and at the entrance to the polling centre no one may attempt to influence voters. Votes are cast in secret. Polling is public, as is the counting of votes and the establishment of the result.

Contesting of Election Results

According to Article 41 of the Basic Law, the “scrutiny of elections shall be the responsibility of the Bundestag”. Complaints against a decision of the Bundestag may be lodged with the Federal Constitutional Court.

The Federal Electoral Law (Article 49), the Election Scrutiny Act of 12 March 1951 and the Law on the Federal Constitutional Court of 3 February 1971 contain detailed provisions governing the prerequisites and procedures for contesting an election.

Reimbursement of Election Costs

According to the previous, and in some cases still prevailing, legal situation, parties that have participated in the election with their own candidates and any independent candidates in constituencies are reimbursed from public funds for the requisite expenses of an appropriate election campaign.

To date, election costs were a lump sum of DM 5.00 for each person entitled to vote plus a subsidy payment. Parties that had received at least 2 per cent of the valid votes cast in the constituency in question also received a subsidy of 6 per cent of the total election campaign cost lump sum in addition to the lump sum. The subsidy payment could not account for more than 80 % of a party’s share of the election campaign lump sum.

In its fundamental judgement on party financing of 9 April 1992 the Federal Constitutional Court declared that large parts of the previous regulations governing party financing were unconstitutional. The Court called upon the legislator to remedy the infringements to the Constitution so that they do not have any effect on the elections scheduled for 1994. Until a new regulation has been found, the deficits of the existing legal position must be accepted in part. The regulation for the subsidy payment was declared inapplicable with immediate effect. At the same time the Court left it up to the legislator to convert state financing of parties from reimbursement of election costs to general financing.

A commission of independent experts on party financing convened by the Federal President submitted recommendations for new regulations to the German Bundestag on 18 February 1993.

After the Election

The members of the different parties in the Bundestag form parliamentary parties in order to be able to carry out their programmes effectively. The parliamentary parties are not sub-organizations of the parties themselves but are constituent parts of the parliament as a constitutional body. The Rules of Procedure of the Bundestag only allow parliamentary parties to be formed under certain conditions: They must consist of at least five per cent of the members of the Bundestag who belong to the same party or parties which, owing to the fact that they pursue the same political aims, are not in competition with one another in any federal state.

The minimum strength of a parliamentary party prescribed here corresponds to the hurdle that the parties must clear in order to be represented in the Bundestag. Any member who leaves his party also leaves his parliamentary party. Groups of less than 26 may be formed, as for instance if members change their parliamentary party in the course of a legislative term, but only if the Bundestag votes in favour.

In practice, a member may find himself torn between his conscience and his loyalty to his parliamentary party. Members of parliament represent the people and must therefore look after the interests of the community and not of the party.

A member who causes harm to the party by breaching its principles may be expelled from his party, but in such an event does not lose his seat in parliament.

In Retrospect

General and direct elections by secret ballot were envisaged for the first time in German history in the electoral law of the North German Confederation enacted on 17 April 1867, the electoral law for the Reichstag of 31 May 1869, and the law on elections for the German Reich of 16 April 1871.

A truly democratic electoral law was established during the Weimar Republic. The way was paved by the proclamation of an election for the constituent assembly on 12 November 1918, calling for secret, direct, general elections. The electoral law of 27 April 1920 codified these principles which were later incorporated in the Reich electoral law of 6 March 1924.

The unforgotten splintering of the parties in the twenties, had a substantial influence on the post-1945 debate on the foundation for a new electoral law. As views differed very widely during preparatory discussions on the Basic Law and in order not to make further modifications difficult it was decided that the Basic Law itself should not prescribe a specific electoral system.

Prospects

“If freedom and democracy are to be strengthened and respected they need to be based first and foremost on a good electoral system.” This very apt statement is contained in the preface to the report submitted in 1955 by the commission on electoral reform appointed by the Federal Ministry of the Interior.

The 1956 Federal Electoral Law, together with subsequent amendments, have met this requirement since they have helped considerably to preserve the free state based on the rule of law and the parliamentary democracy of the Federal Republic of Germany. The provisions of the Electoral Law are undisputed, they are accepted by the people and they have been upheld by the Federal Constitutional Court. The whole election procedure is relatively simple; determining and establishing the results of the election right up to distributing seats is transparent.

From 2002: Fewer constituencies, fewer members of parliament

When the 15th German Bundestag meets – probably in the year 2002 – it will have fewer members of parliament than previously. Nothing has changed – except for a few minor constituency adjustments – for the 1998 Bundestag elections. However, for the following election the legally determined number of members of parliament will be reduced from 656 to 598 and the number of constituencies, in which half of the members of parliament are directly elected, will fall from 328 to 299.

The decision on what the future map of constituencies will look like in detail will be taken during this parliamentary term. Each one of the new constituencies will comprise some 250,000 inhabitants of German nationality. It has already been decided that all of the federal states will have to give up some of their former constituencies. In North-Rhine/Westphalia, the state with the highest population, there will be 64 constituencies in future – 7 fewer than previously. In Saxony the number of constituencies will be reduced from 21 to 18. The four remaining eastern German large-area states and Lower Saxony will lose 2 constituencies each and all the other federal states will probably have to relinquish 1 constituency each.